No. 518 Pittsburgh 1984, Appeal from the Order of April 5, 1984 in the Court of Common Pleas of McKean County, Criminal Division, at No. 122 of 1982
Charles J. Duke, Bradford, for appellant.
Robert L. Saunders, Assistant District Attorney, Bradford, for Commonwealth, appellee.
Beck, Popovich and Handler, JJ.*fn* Beck, J., joins in this opinion. Popovich, J., concurs in the result.
[ 344 Pa. Super. Page 472]
This is an appeal from judgment of sentence of five to ten years imprisonment plus restitution of $391 for aggravated assault. Appellant contends that the Lower Court erred in failing to dismiss the charges against him pursuant to Pa.R.Crim.P. 1100.*fn1 We agree.
The complaint was filed on July 11, 1982, charging appellant with aggravated assault arising out of a fight between the appellant and his girl friend, Betty Walker, during which appellant slashed Walker with a razor blade. The run date for Rule 1100 purposes was therefore January 7, 1983. Appellant was arraigned and entered a plea of not guilty on July 30, 1982.*fn2 Subsequently, on August 19, 1982, appellant filed an application for an incompetency examination under par. 402(c) of the "Mental Health Procedures Act." 50 P.S. § 7402(c). The Court, made an order committing
[ 344 Pa. Super. Page 473]
the appellant to the State Correctional Diagnostic and Classification Center in the Pennsylvania State Correctional Facility at Pittsburgh, Pennsylvania for a period not exceeding sixty (60) days for diagnostic observation and examination pursuant to Pa.R.Crim.P. 1403 B.*fn3 This order noted that the appellant had been committed under the foregoing Rule and also that notice of the order had been given to counsel for the Commonwealth and the defendant. It is significant that authority to commit under the Rule is for the purpose of aiding the Court in imposing sentence and a defendant may only be directed to submit after a finding of guilt and before the imposition of sentence. Appellant was sentenced on October 21, 1982, to five to ten years imprisonment.
On November 9, 1982, appellant filed a petition to vacate the sentence alleging that the sentence was invalid because it had been imposed prior to a plea of guilty or a finding of guilt after a trial. A hearing was then held and on November 18, 1982, the sentence was vacated.*fn4
On November 19, 1982, the Commonwealth filed a petition for extension of time pursuant to Rule 1100(c). The petition alleged that: (1) The appellant was unavailable while being examined at the State Correctional Diagnostic and Classification Center, (2) The appellant through his counsel acknowledged that he had pleaded guilty at the sentencing proceeding, and that the Commonwealth was ready to proceed to trial on the day of sentence, and continued to remain ready to proceed, and (3) That January 31, 1983, a date beyond the prescribed period under Rule 1100, was the next date when a jury panel would be available. The appellant's answer averred that he was available while being examined at the Diagnostic and Classification Center and denied that he had ever entered a plea of guilty. In addition, appellant alleged, by way of new matter to his answer that since the date the complaint was
[ 344 Pa. Super. Page 474]
filed, there had been two dates, September 13, 1982, and November 8, 1982, on which a jury panel was available. The Commonwealth's petition was granted after a hearing.*fn5 Appellant then filed a petition to dismiss pursuant to Rule 1100(f). Appellant's application was denied and trial commenced on January 31, 1983, the date the jury was selected and sworn. After a trial the jury returned a verdict of guilty and after post-trial motions were denied he was sentenced. In response to the appellant's contention in his motion for post-trial relief that he had been denied his rights under Rule 1100, the Court in it's opinion made these two relevant findings, (1) That the elapsed time from the filing of the complaint to the commencement of the trial was 204 days and (2) That failure of the ...